California Appellate Court Rules That Electromagnetic Hypersensitivity May Qualify as a Disability Under FEHA

05.27.2021

In Brown v. Los Angeles Unified School District Dist. (2021) 60 Cal.App.5th 1092, the Court of Appeal addressed the limits of what constitutes a “disability” for purposes of the California Fair Employment and Housing Act (“FEHA”) and found that “electromagnetic hypersensitivity” (“EHS”) as pled by plaintiff was a triable issue.

Electromagnetic Hypersensitivity and the Americans with Disabilities Act

To provide background^[1], EHS is a claimed sensitivity to electromagnetic fields (“EMFs”), including wireless network devices. However, EHS is not a recognized illness in the medical field and is generally self-diagnosed—there is no objective criteria for diagnosing EHS and studies have failed to find a strong relationship between EMFs and EHS. According to a 2017 study, participants with self-reported EHS were exposed to EMFs, as well as fake fields in a random pattern, and none of the participants were able to indicate when they were being exposed to real EMFs. (See Imke van Moorselaar I, et al., Effects of personalised exposure on self-rated electromagnetic hypersensitivity and sensibility - A double-blind randomised controlled trial (Feb. 2017) 99 Environ Int. 255.)

The federal courts that have analyzed ADA discrimination claims from plaintiffs alleging they had EHS have both held the plaintiffs did not prove they had a “disability” entitled to ADA protections due to EHS’s controversy among the medical community, including whether it is physical or psychological in nature. (Hirmiz v. New Harrison Hotel Corp. (7th Cir. 2017) 865 F.3d 475; G v. Fay Sch., Inc. (D. Mass. 2017) 282 F.Supp.3d 381.) As Justice Posner wrote, “If [EHS] is psychological, the symptoms might not constitute a disorder that would entitle [the plaintiff] to the protections of the Americans with Disabilities Act.” (Hirmiz v. New Harrison Hotel Corp., supra, 865 F.3d at p. 476.)

Brown v. Los Angeles Unified School District

Although federal courts had not recognized EHS as a disability for purposes of ADA, in Brown v. Los Angeles Unified School District, the plaintiff claimed that Los Angeles Unified School District (“LAUSD”) failed to accommodate her disability under FEHA, which provides broader protections than the ADA.

In 2015, LAUSD installed a new Wi-Fi system at the plaintiff’s work site. Following the installation, the plaintiff claimed she began experiencing various symptoms she attributed to the Wi-Fi system, including chronic pain, headaches, and nausea. The plaintiff was diagnosed with EHS by her medical provider, and LAUSD attempted to provide accommodations by disconnecting Wi-Fi access points in the plaintiff’s classrooms. The plaintiff claimed her symptoms persisted, and LAUSD then agreed to conduct a neutral examination of the Wi-Fi radio frequency but ultimately reneged on the agreement more than a year later.

The Court of Appeal found that the plaintiff adequately pled that she had a “disability” under FEHA despite recognizing that federal courts had found that EHS was not a recognized “disability” under the ADA. Because FEHA is broader than the ADA and provides independent protections, the plaintiff’s claim that she had a physical condition that affected a major life activity (working) was sufficient regardless of whether EHS was formally recognized.

Key Takeaways

Employers should be aware that California courts will construe FEHA broadly when determining whether an individual has a qualifying “disability.” Plaintiffs need only plead they have a mental or physical disability that affects a major life activity to proceed to trial, regardless of whether they have a condition formally recognized by the medical community or the ADA (such as EHS).

Employers should also note the Court of Appeal ruled that the plaintiff adequately pled LAUSD failed to provide her with reasonable accommodations. LAUSD had reneged on its prior agreement to provide an accommodation, and while the Court of Appeal found that reneging was not proof of failure to engage in the interactive process, it was proof of failure to accommodate. “‘[R]easonable accommodation’ envisions an exchange between employer and employee in good faith…. LAUSD’s actions here do not align with those of an employer taking positive steps to accommodate the employee’s limitations….” (Brown v. Los Angeles Unified School District Dist., supra, 60 Cal.App.5th at p. 1108.) If an employer agrees to an accommodation and later reneges on that agreement, it should clearly document the reasons for its decision and reengage in the interactive process to determine whether there are other reasonable accommodations.

^[1] For those readers who have not seen the television show Better Call Saul.